STATE v. FOSTER (2007)

PART PUBLISHED

¶ 1 Jeffrey Michael Foster appeals his convictions for two counts of unlawful delivery of a controlled substance, methamphetamine, and one count of bail jumping, claiming that the evidence was insufficient to support his convictions.   Foster also filed a Statement of Additional Grounds (SAG),¹ arguing that his trial counsel provided ineffective assistance on various grounds, including approving a stipulation to an out-of-state conviction that was either not comparable to a Washington State crime or washed-out of his offender score.   Foster also claims that his appellate counsel provided ineffective assistance by failing to request the voir dire transcript.   We affirm.

FACTS

¶ 2 On September 15, 2004, an undercover Puyallup Police Detective, Donald Gill, made contact with Louie Wilson and asked how he could buy drugs.   Wilson, who did not know that Gill was a police officer, entered Gill's unmarked police car and directed him to an address in Puyallup, Washington.   Gill waited in the car while Wilson bought the drugs.

¶ 3 Afterwards, Gill met with Michael Turner, a confidential informant (CI), Detective Sergeant Fralick, and Officer Michael Clark to plan a controlled drug buy at the same Puyallup residence.   The officers searched Turner for drugs, weapons, or money, and provided him with $40 for the controlled buy.   Gill directed him to the residence which was under officer surveillance.   Turner contacted Wilson and the two emerged from the residence and walked a few blocks to the Cavalier Apartments.   Wilson took Turner inside one of the apartments, where Turner met Michael Smith and asked to buy drugs.   After a few minutes Foster entered the apartment and Turner watched him weigh 0.6 grams of methamphetamine on a digital scale.   Smith gave Turner the methamphetamine in exchange for the $40 officers had provided.   Turner left the apartment, met Clark in his car, stated he had made the purchase, and handed Clark a packet containing a substance that tested positive for methamphetamine.   Clark took Turner to the police station, where the police again searched and interviewed him.

¶ 4 On September 29, Gill again met Turner, searched him, provided him with money and told him to perform a controlled buy in a trailer park in Puyallup, where Wilson, Foster, and a man named Auddie Hardy ² lived.   Turner first contacted Hardy, told him that he needed to get some “crank,” ³ and Hardy directed him to Foster's trailer.   Report of Proceedings (RP) ⁴ at 99.

¶ 5 After hearing that Turner wanted to buy drugs, Foster told Crystal, a woman who also was in the trailer, to retrieve “the stuff” from a nearby parked car.   RP at 100.   When she returned, Foster gave Turner a baggie of white powder in exchange for $40.   Turner returned to Gill's car with the drugs and Gill drove Turner back to the police station, where he was again searched and interviewed.   The white powder Turner gave to Gill field-tested positive for methamphetamine and the Washington State Patrol Crime Laboratory (WSPCL) confirmed that it was methamphetamine.   At trial, Foster denied involvement in these two drug transactions.

¶ 6 On October 7, police served search warrants on Foster's trailer and Smith's apartment.   When officers arrested Smith, they found drug paraphernalia and two baggies containing methamphetamine in his apartment.   After arresting Foster, officers searched the trailer and recovered “assorted drug paraphernalia, including needles and pipes.”   Clerk's Papers (CP) at 3. Smith admitted to the police that he sold methamphetamine and that he previously had bought it from Foster and Wilson.   But at trial, Smith denied making these statements.

¶ 7 On October 8, the State charged Foster with two counts of unlawful delivery of methamphetamine, a controlled substance.   The trial court issued, and Foster signed, a scheduling order for an omnibus hearing on October 26, 2004, but he failed to appear for medical reasons.   The trial court issued a bench warrant for Foster's arrest, which it later quashed.   The trial court issued, and Foster signed, another scheduling order for an omnibus hearing at 8:30 a.m. and a continuance hearing at 1:30 p.m., both to be held on January 5, 2005.   Foster again failed to appear at the 8:30 a.m. omnibus hearing and the trial court phoned Foster twice but received no response.   The trial court issued a bench warrant for Foster's arrest, which it also later quashed.   Foster appeared at 1:30 p.m., but his attorney was not present.   The trial court informed him that he should have attended the omnibus hearing in the morning and attempted to contact his counsel.   The court then directed him to go immediately to one of the programs required as a condition of his release.   The State amended the charging information to include two counts of bail jumping, one count for September 24, 2004, and one count for January 5, 2005.

¶ 8 On September 27, 2005, a jury found Foster guilty of both counts of unlawful delivery of a controlled substance and of one count of bail jumping for his failure to appear on January 5, 2005.   Foster absconded from the courtroom following the jury verdict and was an absconder for approximately seven months.   On June 2, 2006, Foster pleaded guilty to first degree escape for absconding from the court room on September 27, 2005, and the court sentenced him on both that case ⁵ and for his convictions for unlawful possession of a controlled substance and bail jumping.

¶ 9 At sentencing, Foster's defense attorney for the first degree escape charge told the trial court that she had reviewed the paperwork with Foster, including his stipulation to his criminal history.⁶  The trial court engaged Foster in a colloquy to ascertain whether he understood his plea agreement on the escape charge.   The sentencing court specifically discussed the standard range of confinement and asked whether the stipulation to his prior record was true and accurate.   The sentencing court did not conduct a comparability analysis of Foster's alleged out-of-state prior convictions, did not conduct a wash-out analysis, and did not ask the State for evidence of the prior convictions.

¶ 10 After sentencing Foster for first degree escape, the trial court, without more discussion, sentenced him to two 84-month sentences, one for each count of unlawful delivery of a controlled substance, and 43 months for bail jumping, to be served concurrently, but all to be served consecutively to the first degree escape sentence.

¶ 11 Foster appeals.

ANALYSIS

I. Ineffective Assistance of Counsel-Stipulation to Comparability and No Wash-Out

¶ 12 Foster claims in his SAG that his trial counsel was ineffective because his counsel encouraged him to stipulate to an out-of-state conviction that was either not comparable to a Washington crime or that washed-out of his offender score, without requiring the State to present evidence of his criminal history.   We ordered additional briefing on Foster's SAG argument that his counsel was ineffective by allowing him to stipulate to his criminal history that the State did not prove.   Both parties, the State and the defendant, responded to our request.

A. Standard of Review

 ¶ 13 The federal and state constitutions guarantee a defendant effective assistance of counsel.⁷  To prove ineffective assistance of counsel, the appellant must show that (1) counsel's performance was deficient, i.e., that the representation “fell below an objective standard of reasonableness based on consideration of all the circumstances” and (2) that deficient performance prejudiced him, i.e., “there is a reasonable probability that, except for counsel's unprofessional errors, the result of the proceeding would have been different.”  State v. McFarland, 127 Wash.2d 322, 334-35, 899 P.2d 1251 (1995).   We determine whether counsel was competent based upon the entire trial record.  McFarland, 127 Wash.2d at 335, 899 P.2d 1251.

 ¶ 14 We do not address both prongs of the ineffective assistance test if the defendant's showing on one prong is insufficient.  Strickland v. Washington, 466 U.S. 668, 697, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984);  State v. Staten, 60 Wash.App. 163, 171, 802 P.2d 1384 (1991).   We give great judicial deference to trial counsel's performance and we begin our analysis with a strong presumption that counsel was effective.  Strickland, 466 U.S. at 689, 104 S.Ct. 2052;  McFarland, 127 Wash.2d at 335, 899 P.2d 1251.

B. Effect of a Stipulation on State's Burden to Prove Criminal Record and Effective Assistance of Counsel

¶ 15 Foster argues that his trial counsel's performance was ineffective because his counsel allowed him to sign a “stipulation on prior record and offender score” in which he stipulated that he had a prior Kansas conviction for attempted aggravated burglary, that the Kansas conviction was comparable to a class B felony, and that the Kansas conviction did not wash-out of his offender score.   SAG at 6-8.   He does not argue that the Kansas conviction does not exist, but, rather, that his counsel was ineffective for allowing him to stipulate to it.   In his SAG, he concludes that his offender score should be reduced by one point because the State did not prove that this prior conviction was comparable or did not wash-out.

¶ 16 In the additional briefing, the parties agree that the trial court record is insufficient to determine whether Foster's trial counsel's performance was deficient for allowing Foster to stipulate and if the stipulation prejudiced Foster.   Foster contends, though, in his supplemental brief, that he may raise the miscalculation of his offender score for the first time on appeal, and, because the basis of his ineffective assistance of counsel claim is that his counsel failed to challenge comparability and wash-out, it is necessary to examine whether the evidence the State presented established comparability or wash-out.   In addition, Foster argues that because the record is insufficient, we should remand the case for resentencing and allow the State to present evidence to prove Foster's criminal history.   The State responds that Foster's stipulation is sufficient and that it does not need to provide the trial court with additional evidence to prove his criminal history.   We agree with the State.⁸

 ¶ 17 When determining the defendant's sentence, the trial court may rely on admitted information from the trial record or at the time of sentencing.   Former RCW 9.94A.530(2) (2004).⁹  But “a sentence based on a miscalculated upward offender score is in excess of statutory authority and generally may be challenged at any time.”  In re Pers. Restraint of Cadwallader, 155 Wash.2d 867, 874, 123 P.3d 456 (2005).   See generally In re Pers. Restraint Petition of Goodwin, 146 Wash.2d 861, 873-876, 50 P.3d 618 (2002) (discussing certain cases in which waiver may be found);  State v. Mendoza, 139 Wash.App. 693, 162 P.3d 439 (2007) (outlining the case law history of this proposition).   In other words, “[t]he defendant cannot agree to a sentence in excess of that which is statutorily authorized.”  Cadwallader, 155 Wash.2d at 874, 123 P.3d 456.   But “ [w]aiver of a challenge to an allegedly invalid sentence ‘can be found where the alleged error involves an agreement to facts, later disputed, or where the alleged error involves a matter of trial court discretion․ [W]aiver may be found where a defendant stipulates to incorrect facts.’ ” Cadwallader, 155 Wash.2d at 875, 123 P.3d 456 (citing Goodwin, 146 Wash.2d at 874, 50 P.3d 618).

¶ 18 In State v. Ross, Ross's counsel acknowledged that an out-of-state prior conviction was properly included in Ross's offender score.  152 Wash.2d 220, 225, 95 P.3d 1225 (2004).   On appeal, Ross argued that the sentencing court improperly calculated his offender score because the State failed to prove that his out-of-state conviction was comparable to a Washington crime.   Ross, 152 Wash.2d at 225, 95 P.3d 1225.   But because Ross had already been released from confinement and his appeal was moot, our Supreme Court considered two identical claims by two other defendants.¹⁰  Ross, 152 Wash.2d at 228-229, 95 P.3d 1225.

¶ 19 In addressing the remaining two claims, the Court held that a defendant's affirmative acknowledgement ¹¹ of the “existence and comparability” of out-of-state convictions need not be supported by further proof and can be included in the defendant's offender score at the time of sentencing.   Ross, 152 Wash.2d at 233, 95 P.3d 1225;  see also Ford, 137 Wash.2d at 482-83, 973 P.2d 452;  State v. Huff, 119 Wash.App. 367, 372-73, 80 P.3d 633 (2003) (defendant's stipulation sufficient to establish prior criminal history and defendant could not raise the issue on direct appeal).   Foster's argument is substantially similar to the defendants' argument rejected in Ross.

 ¶ 20 Foster's stipulation to the comparability of the Kansas conviction to a Washington class B felony and to the fact that it had not washed out is an admission of its existence (which Foster does not challenge), its comparability, and its continuing viability for inclusion in his offender score.   The stipulation here relieved the State of its burden of proof on these facts.¹²

¶ 21 In a recent Supreme Court case, In re Pers. Restraint of Shale, the Court addressed a defendant's allegation that the trial court had miscalculated his offender score by not treating some of his crimes as the “same criminal conduct” for purposes of calculating the offender score.  Shale, 160 Wash.2d 489, 494, 158 P.3d 588, 590 (2007).   Relying on Goodwin and State v. Nitsch, 100 Wash.App. 512, 997 P.2d 1000 (2000), the Court concluded that Shale agreed to his offender score as part of a plea bargain and did not challenge the computation of the offender score.  Shale, 160 Wash.2d at 494-495, 158 P.3d 588.   The Court noted:  “While we have recognized and granted relief from plea agreements in limited circumstances, those cases involved pleas, convictions, or sentences that were invalid on the face of the judgment and sentence.”   In Shale, there was no apparent invalidity and, thus, the Court affirmed his sentence without remanding for further hearings on his offender score calculation.  Shale, 160 Wash.2d at 496, 158 P.3d 588.

¶ 22 As a threshold matter, Foster must show “that an error of fact or law exists within the four corners of his judgment and sentence” to challenge the inclusion of the Kansas conviction in his offender score now.  Ross, 152 Wash.2d at 231, 95 P.3d 1225.   Here, it is undisputed that, at sentencing, the State did not provide copies of the judgment and sentence for the Kansas conviction, did not provide copies of the applicable Kansas statutes, nor did it address whether the Kansas conviction washed out in light of Foster's subsequent criminal history, relying on Foster's stipulation.   The stipulation recited that Foster's prior Kansas conviction was comparable to a Washington class B felony and that it did not wash-out.¹³

¶ 23 On appeal, Foster fails to show how the trial court committed any arguable factual or legal error by including his prior Kansas conviction in his offender score.   He provided no analysis of the comparability of the Kansas crime to a Washington felony nor does he analyze how it might have washed-out.   As in Shale and Ross, Foster points to no apparent invalidity on the face of the judgment and sentence and falls short in his attempt to assert an incorrect offender score, which underlies his claim of ineffective assistance of counsel.   Therefore, we do not remand for resentencing nor do we hold that his counsel was ineffective in providing Foster's stipulation to the court for sentencing purposes.

¶ 24 A majority of the panel having determined that only the foregoing portion of this opinion will be printed in the Washington Appellate Reports and that the remainder shall be filed for public record pursuant to RCW 2. 06.040, it is so ordered.

II. Sufficiency of the Evidence

¶ 25 Foster argues that the evidence is insufficient to support his convictions for unlawful delivery of a controlled substance and bail jumping.

A. Standard of Review

¶ 26 The evidence is sufficient to support a conviction if the evidence allows any rational trier of fact to find the essential elements of the crime beyond a reasonable doubt when the evidence is viewed in the light most favorable to the State.  State v. Thomas, 150 Wash.2d 821, 874, 83 P.3d 970 (2004).   An appellant claiming insufficiency of the evidence “ ‘admits the truth of the State's evidence and all inferences that reasonably can be drawn therefrom.’ ” Thomas, 150 Wash.2d at 874, 83 P.3d 970 (quoting State v. Salinas, 119 Wash.2d 192, 201, 829 P.2d 1068 (1992)).   We view both circumstantial and direct evidence as equally reliable.  Thomas, 150 Wash.2d at 874, 83 P.3d 970.   We do not review credibility determinations on appeal and “defer to the trier of fact on issues of conflicting testimony, credibility of witnesses and the persuasiveness of the evidence.”  Thomas, 150 Wash.2d at 874-75, 83 P.3d 970.

B. Unlawful Delivery of Methamphetamine

¶ 27 Foster claims that the evidence is insufficient to support his convictions for unlawful delivery of methamphetamine since the only testimony linking Foster to the delivery was provided by Turner, a paid CI. This argument lacks merit.   The only authority that he cites to support his contention is State v. Roberts, which provides, “[w]here a case stands or falls on the jury's belief or disbelief of essentially one witness, that witness' credibility or motive must be subject to close scrutiny.”  25 Wash.App. 830, 834, 611 P.2d 1297 (1980).14  But Foster does not claim that the trial court or counsel failed to subject Turner's testimony to close scrutiny.

¶ 28 Foster argues, rather, that because police paid Turner for his work, Gill paid his informants more money than other narcotics officers paid their informants, Gill gave bonuses to his informants if the information lead to a successful search warrant, and both Smith and Foster denied that Foster delivered the drugs, a rational jury could not have believed Turner's testimony.   But we do not review credibility determinations on appeal.   Thomas, 150 Wash.2d at 874-75, 83 P.3d 970.

¶ 29 The jury may consider the totality of the evidence to ascertain whether there is proof beyond a reasonable doubt to substantiate guilt.   The jury was free to give weight to the officers' testimony, to believe Turner, and to disbelieve Foster and Smith.   Thus, in viewing the evidence in the light most favorable to the State, without weighing the evidence or determining credibility, we hold that the State presented sufficient evidence to allow any rational trier of fact to find the essential elements of the crime beyond a reasonable doubt and to support Foster's two convictions for delivery of a controlled substance.

C. Bail Jumping

¶ 30 Foster next argues that the State did not present sufficient evidence to support his conviction of bail jumping because it failed to prove that Foster “knew he had to be in court” for a scheduled hearing.   Br. of Appellant at 9. Foster signed and received a copy of a scheduling order informing him that he was required to appear at 8:30 a.m. and 1:30 p.m. on January 5, 2005, for two separate hearings.   Foster claims that he could not discern from the scheduling order that he was required to appear at 8:30 a.m. He also contends that because he appeared at the 1:30 p.m. continuance motion also scheduled for January 5, 2005, the only logical conclusion as to why he also would not have appeared at the 8:30 a.m. hearing is that he did not know of the hearing.   This argument lacks merit.

¶ 31 To prove bail jumping under RCW 9A.76.170,15 the State was required to prove beyond a reasonable doubt that Foster failed to appear before a court on January 5, 2005, and that he was charged with another crime and released by court order or admitted to bail knowing he was required to personally appear before a court of this state.   The only affirmative defense to bail jumping is uncontrollable circumstances.16

¶ 32 A defendant's actual knowledge of the specific hearing date at which he failed to appear is not an element of the crime;  the State need only prove that the defendant had notice of the court date.  State v. Carver, 122 Wash.App. 300, 306-07, 93 P.3d 947 (2004);  State v. Ball, 97 Wash.App. 534, 536-37, 987 P.2d 632 (1999).

¶ 33 In Carver, the defendant failed to appear at a subsequent court hearing because he forgot about the hearing.  Carver, 122 Wash.App. at 303-04, 93 P.3d 947.   On appeal, he argued that the prosecutor committed misconduct when the prosecutor stated that “I forgot” is not a defense to the crime of bail jumping and that the State had to prove that Carver knew that he was required to appear on the precise date of the hearing.  Carver, 122 Wash.App. at 304-05, 93 P.3d 947.   We held that the defendant need only have notice of his court date, that the State need not prove the defendant knew about his court date after that notice, and that “I forgot” is not a defense to a bail jumping charge.  Carver, 122 Wash.App. at 306-07, 93 P.3d 947.

¶ 34 Here, Foster argues that he did not know that he had to appear at 8:30 a.m. on January 5, 2005, because he (1) improperly read his scheduling order stating that he had two hearings on the same date and (2) he willingly appeared for his afternoon motion on the same date.   But under the current statute and case law, the State only needed to show that Foster had notice of the hearing and that Foster did not appear.   Foster had constructive knowledge of the hearing because he possessed a copy of the scheduling order, which bore the date and time of the hearings, and he signed it.   Misreading a scheduling order is not an affirmative defense to a bail jumping charge.

¶ 35 We hold that the State presented sufficient evidence for a rational trier of fact to find beyond a reasonable doubt that Foster committed the crime of bail jumping when he failed to appear for his January 5, 2005, 8:30 a.m. omnibus hearing.

III. Remaining SAG Issues-Ineffective Assistance of Counsel

¶ 36 Foster also alleges that his trial counsel provided ineffective assistance because his counsel (1) failed to move to suppress the State's evidence and stipulated to not calling the State's expert witness from the WSPCL, (2) failed to challenge the authenticity of his Miranda17 waiver, (3) was stretched too thin, (4) failed to move to challenge the veracity of Turner's testimony, and (5) failed to request limiting instructions when Turner and Gill provided untruthful testimony.   In addition, Foster claims his appellate counsel provided ineffective assistance by failing to request the voir dire transcript.

A. Suppression of Evidence and Stipulation to Not Call the State's Expert Witness

¶ 37 Foster claims that his trial counsel performed deficiently by stipulating to several matters, including the authenticity and accuracy of drug testing and an agreement not to call state forensic officers, arguing that his counsel should have moved to suppress the evidence.   When the trial court called the case for trial and discussed witness lists, the parties represented to the trial court that they had stipulated that there was (1) no contested issue regarding the accuracy of the WSPCL's drug tests, (2) a proper foundation to admit the drug test results, and (3) a proper chain of custody.   Thus, both sides stipulated that they would not call Louis Robert Wilson, the forensic scientist for the Puyallup Police Department, or Franklin Boshears from the WSPCL as witnesses.18  The stipulation was admitted and was read to the jury.   The State also told the trial court, and Foster's defense counsel agreed, that there was no Criminal Rule (CrR) 3.5 19 issue because Foster did not make any statements after his arrest and the defense had not moved for a CrR 3.6 20 hearing.21

¶ 38 Foster relies on evidence outside the record that we cannot review and presents no argument about why the stipulations should not have been entered into, other than Foster's desire to have test results excluded.   The proper method of getting information that is outside the record before the court is a personal restraint petition.  McFarland, 127 Wash.2d at 338 n. 5, 899 P.2d 1251. Foster has not shown how his counsel's performance in these matters was deficient or prejudiced him;  therefore, we do not hold that Foster's counsel was ineffective on this issue.

B. Challenge to Miranda Waiver

¶ 39 Foster contends that the Miranda waiver from the Puyallup Police Department was a waiver that his son had signed at a different time.   Again, this is information that is outside the record on appeal.  Miranda warnings “protect a defendant's constitutional right not to make incriminating confessions or admissions to police while in the coercive environment of police custody.”  State v. Heritage, 152 Wash.2d 210, 214, 95 P.3d 345 (2004).   We presume that the statements the defendant made during a custodial interrogation are involuntary if the defendant had not been given Miranda warnings.   Heritage, 152 Wash.2d at 214, 95 P.3d 345.

¶ 40 But, here, the State introduced no statement that Foster purportedly gave to the police after his arrest and the State told the trial court that Foster made no statements to the police after his arrest.22  Thus, the protections that Miranda warnings provide and a waiver of the right to remain silent do not apply in this case.   Foster has not shown how his counsel's failure to seek suppression of his Miranda waiver prejudiced him and, thus, we hold that trial counsel was not ineffective on this issue.

C. Defense Attorney's Schedule

¶ 41 Foster argues that his trial counsel was stretched too thin and, therefore, was ineffective.   For support, Foster refers to his counsel's discussion with the trial court during scheduling indicating that his counsel had many other trial dates.   A court-appointed defense attorney having numerous trial dates does not equate to ineffective assistance of counsel.   The record reveals that Foster's counsel attempted to set the best possible time for a hearing so that he would not be required to be in two court rooms around the same time which is, in our view, a prudent, rather than an ineffective, scheduling tactic.   Foster does not persuade us that his counsel's performance was deficient due to a large caseload.

D. Failure to Challenge the Veracity of Turner's Testimony

¶ 42 Foster argues that his trial counsel was ineffective by failing to move to suppress Turner's testimony because he was not a reliable CI under the Aquilar-Spinelli23 test.   Washington courts apply the two-pronged Aquilar-Spinelli test to determine whether information the informant provided establishes probable cause to issue a search warrant based on the informant's basis of knowledge and reliability.  State v. Vickers, 148 Wash.2d 91, 111-112, 59 P.3d 58 (2002);  see Spinelli, 393 U.S. at 415-16, 89 S.Ct. 584;  Aguilar, 378 U.S. at 114, 84 S.Ct. 1509.   The State must make a satisfactory showing on both prongs of the Aguilar-Spinelli test to establish probable cause.  Vickers, 148 Wash.2d at 112, 59 P.3d 58.   If an informant's tip fails under either prong, the warrant fails unless independent police investigation corroborates the tip to such an extent that it supports the missing elements of the test.  Vickers, 148 Wash.2d at 112, 59 P.3d 58.   We review issuance of a search warrant for abuse of discretion. 24  State v. Maddox, 152 Wash.2d 499, 509, 98 P.3d 1199 (2004).

¶ 43 Here, Foster argues that Turner's trial testimony should have been suppressed because Turner previously lied to law enforcement, as shown by Turner's trial testimony when he admitted prior criminal conduct.   Foster actually is challenging Turner's credibility.   But the jury determines credibility.  Thomas, 150 Wash.2d at 874-75, 83 P.3d 970.   Furthermore, the proper tools to impeach Turner's testimony were the rules of evidence, not the Aguilar-Spinelli test.   Foster fails to show how his counsel's performance was deficient or that, if his performance was deficient, that it prejudiced him.

E. Failure to Request Limiting Instructions

¶ 44 Foster argues that his counsel should have provided limiting instructions to the jury when inconsistencies in trial testimony occurred or when Foster wanted to have certain testimony highlighted, specifically, when (1) Gill testified that he wants his CIs to remain crime free, but also testified that Turner had an on-going domestic violence case, (2) the police officers testified that they did not see the actual drug transaction take place, (3) Turner testified that he became a confidential informant to earn money, and (4) Turner's description of the man who sold him drugs in the trailer park allegedly did not match that of Foster.

¶ 45 Again, Foster is challenging each witness's credibility.   We do not review credibility determinations on appeal and defer to the trier of fact on issues of conflicting testimony, witness credibility and persuasiveness of the evidence.  Thomas, 150 Wash.2d at 874-75, 83 P.3d 970.   Furthermore, one of the purposes of cross-examination is to require a witness to explain any inconsistent testimony.   See State v. Price, 158 Wash.2d 630, 640, 146 P.3d 1183 (2006).   Foster had a full and fair opportunity to cross-examine each witness and draw out any inconsistencies in their testimony.   And the jury was the ultimate judge of their credibility. Foster fails to show how his trial counsel's performance was deficient or, if his performance was deficient, how it prejudiced him.

F. Ineffective Assistance of Appellate Counsel

¶ 46 Foster claims he received ineffective assistance of counsel because his appellate counsel failed to request the voir dire transcript that Foster had requested.   Rule of Appellate Procedure (RAP) 9.2(b) specifically provides “[a] verbatim report of proceedings provided at public expense will not include the voir dire examination ․ unless so ordered by the trial court.”   Here, the trial court excluded the voir dire examination from the report of proceedings provided at public expense.   Foster eventually agreed to pay for the proceedings.   Foster argues that he needed the transcripts because there may have been a jury misconduct issue to bring to the court's attention in his SAG. Thus, although Foster agreed to pay for a transcript, he fails to show how counsel's performance prejudiced him nor does he point to any jury misconduct.   We hold that appellate counsel's performance was not ineffective.

¶ 47 We affirm Foster's conviction and sentence.

¶ 48 A majority of the panel having determined that the remainder of this opinion will not be printed in the Washington Appellate Reports but will be filed for public record pursuant to RCW 2.06.040, it is so ordered.

FOOTNOTES

1.   RAP 10.10(a) provides:  “A defendant/appellant in a review of a criminal case may file a pro se statement of additional grounds for review to identify and discuss those matters which the defendant/appellant believes have not been adequately addressed by the brief filed by the defendant/appellant's counsel.”

2.   The appellate record is unclear whether this person's first name is Auddie or Auggie and whether his last name is Murphy or Hardy.   We refer to him as “Auddie Hardy.”

3.   “Crank” is a street name for methamphetamine.   RP at 100.

4.   There are six volumes of the report of proceedings.   Volumes two through five are a record of the trial proceedings and are consecutively numbered.   All references to the report of proceedings are to these volumes.

5.   See Pierce County Cause No. 05-1-04786-2.

6.   It appears that the stipulation used in Cause No. 05-1-04786-2 was the same stipulation that Foster addresses in his SAG.

7.   The United States Constitution provides:  “In all criminal prosecutions, the accused shall ․ have the assistance of counsel for his defense.”   U.S. Const. amend.   VI. The Washington State Constitution provides:  “In criminal prosecutions the accused shall have the right to appear and defend in person, or by counsel[.]”  Wash. Const. art. 1, § 22.

8.   The State also argues that these issues are best raised in a personal restraint petition (PRP).  We disagree with the State on this point because we believe the issue can be addressed on appeal.

9.   Former RCW 9.94A.530(2) (2004) provides:  “In determining any sentence, the trial court may rely on no more information than ․ admitted, acknowledged, or proved in a trial or at the time of sentencing.”

10.   The other two defendants were Russell J. Hunter, who pleaded guilty to second degree attempted robbery and disputed the comparability of two out-of-state convictions, and Donald J. Legrone, who a jury found guilty of unlawful possession of cocaine with intent to deliver and argued that the court should have counted his two prior out-of-state convictions as only one prior conviction in his offender score.  Ross, 152 Wash.2d at 226-227, 95 P.3d 1225.

11.   An “[a]cknowledgement includes not objecting to information stated in the presentence reports.”  RCW 9.94A.530(2).

12.   Our Supreme Court recently addressed a similar issue in State v. Thiefault, 160 Wash.2d 409, 158 P.3d 580 (2007).   The trial court determined that certain foreign offenses were comparable to Washington State offenses.   Thiefault appealed on other grounds and Division One of this court reversed one of his convictions and remanded for resentencing.   On remand, a new attorney represented Thiefault at resentencing and did not object to the earlier court's comparability determination.  Thiefault, 160 Wash.2d at 413, 158 P.3d 580.   Thiefault appealed, arguing to our Supreme Court, that his trial counsel was ineffective for not objecting to the trial court's previous comparability analysis.  Thiefault, 160 Wash.2d at 414, 158 P.3d 580.   The Court remanded to the superior court to conduct a factual comparability analysis of the out-of-state conviction and ordered the trial court, “[i]n making such a determination, [to] rely on only those facts that Thiefault stipulated or admitted to or those that were proved beyond a reasonable doubt.”  Thiefault, 160 Wash.2d at 420, 158 P.3d 580.But here, the trial court did not conduct a comparability analysis because Foster admitted in his stipulation that the Kansas criminal statute was comparable to a Washington class B felony.

13.   The stipulation also listed the date of sentence for the attempted aggravated burglary charge as “10/28/95,” but the date of the crime as “03/25/85.”   CP at 66.   Despite being questioned about the apparent discrepancy at oral argument, the parties did not clarify why there was a ten-year gap between the commission of the crime and the sentencing.

14.   Foster actually cites “State v. Eggelston [Eggleston], 129 Wash.App. 418, ¶ 86, 118 P.3d 959 (2005), citing State v. Roberts, 25 Wash.App. 830, 834, 611 P.2d 1297 (1980).”   Br. of Appellant at 8. This portion of the Eggleston decision was unpublished (No. 29915-1-II) and it is not citable.   See RAP 10.4(h) (“A party may not cite as an authority an unpublished opinion of the Court of Appeals.”).

15.   Specifically, RCW 9A.76.170(1) provides:Any person having been released by court order or admitted to bail with knowledge of the requirement of a subsequent personal appearance before any court of this state, or of the requirement to report to a correctional facility for service of sentence, and who fails to appear or who fails to surrender for service of sentence as required is guilty of bail jumping.

16.   RCW 9A.76.170(2) provides:It is an affirmative defense to a prosecution under this section that uncontrollable circumstances prevented the person from appearing or surrendering, and that the person did not contribute to the creation of such circumstances in reckless disregard of the requirement to appear or surrender, and that the person appeared or surrendered as soon as such circumstances ceased to exist.

17.   Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).

18.   The appellate record does not contain an original list of possible witnesses.   Also, the State indicated that they would not call Officer Daniel Fralick, but Foster did not object to this.

19.   CrR 3.5(a) provides in relevant part:  “CONFESSION PROCEDURE ․ When a statement of the accused is to be offered in evidence, the judge at the time of the omnibus hearing shall hold or set the time for a hearing, if not previously held, for the purpose of determining whether the statement is admissible.”

20.   CrR 3.6(a) provides in relevant part:  “SUPPRESSION HEARINGS ․ Motions to suppress physical, oral or identification evidence, other than motion to pursuant to rule 3.5, shall be in writing ․ setting forth the facts the moving party anticipated will be elicited at a hearing.”

21.   Foster also argues his counsel failed to conduct discovery.   We do not have a detailed record of defense counsel's efforts to seek discovery, but the record indicates defense counsel conducted an interview with Turner on June 3, 2005.   Thus, it appears that defense counsel availed himself of the discovery process.   Anything beyond this is outside the record and must be addressed in a PRP.

22.   Our record on appeal does not contain any exhibits, but it does not appear the Miranda waiver was offered.

23.   Spinelli v. United States, 393 U.S. 410, 89 S.Ct. 584, 21 L.Ed.2d 637 (1969);  Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964).   Although the United States Supreme Court overruled the Aguilar-Spinelli test in Illinois v. Gates, 462 U.S. 213, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983), our Supreme Court has held that our constitution demands adherence to the Aguilar-Spinelli test.  State v. Jackson, 102 Wash.2d 432, 443, 688 P.2d 136 (1984).

24.   Turner had personal knowledge of the asserted facts and his reliability was proven by previous controlled buys for the Puyallup Police Department.   Thus, although we do not decide the issue, it is likely that the trial court did not abuse its discretion in issuing a search warrant for Foster's trailer if it relied on Turner's “tip” under the Aguilar-Spinelli test.

VAN DEREN, A.C.J.